Samuel Goldberg has been a Massachusetts criminal defense attorney for 20 years. Prior to that, he was a New York state prosecutor. He has published various articles regarding the practice of criminal law and frequently provides legal analysis on radio and television, appearing on outlets such as the Fox News Channel, Court TV, MSNBC and The BBC Network. To speak to Sam about a criminal matter call (617) 492 3000.

Will The Boston District Attorney Prosecute A Police Officer For Sex Crimes And Peeing On Family?

Brewster police officer Joseph H. (hereinafter, “Officer Openfly”) went to a Metallica concert on January 18th. That’s ok…they’re allowed to do that. But the force tends to frown upon things like exposing oneself and urinating on families. So do Suffolk County detectives and, presumably, assistant district attorneys. So, now he faces a hearing in Boston to determine if felony charges should be brought against him.

It’s not the only place he has faced a hearing and potential disciplinary action against him. Earlier this week, he had a disciplinary hearing before selectmen yesterday for the alleged drunken and lewd behavior at the Boston concert. ,

Officer Openfly allegedly pulled down his pants and urinated on a member of a family sitting in the row in front of him at the TD Banknorth Garden in Boston, according to reports from the Massachusetts Bay Transportation Authority Transit Police and Boston police. He then verbally and physically harassed the female members of the family with his pants still down and penis exposed, according to police.

The drunken symbol of law and order was then thrown out of the concert by security personnel. Transit police then told him to leave or face arrest for trespassing. But Officer Openfly was not done. He attempted to re-enter the concert by flashing his badge, which was at least an improvement, and telling them he was a Brewster police officer, according to the police reports. Apparently, he had missed the memo that indicated that law enforcement officials do not get special dispensation to sexually harass, and pee on, families. At least out of jurisdiction.

Apparently unimpressed, the officers arrested Officer Openfly and charged him with trespassing, a misdemeanor.

At least five people have testified in a closed session before Brewster selectmen. They included a transit police officer, two Brewster police officers, and two of the family members Officer Openfly allegedly assaulted. The selectmen can find Officer Openfly not guilty, impose a penalty, or terminate his employment for his actions that night. Yesterday, they decided they needed at least another day of hearings to allow Officer Openfly’s attorney to present his defense.

That one should be good. It Kind of makes me miss CourtTV
Anyway, Selectman Peter Norton, chairman of the board, said he could not release the date of Officer Openfly’s second disciplinary hearing, but that it would be posted.

Patrick Bryant, Open Openfly’s attorney, would not let his client comment after the hearing, but did say that he continues to deny all the allegations brought against him.

Meanwhile, Boston police detectives have asked for a clerk magistrate’s hearing in Boston Municipal Court on March 5 on possible felony charges, Boston police spokesman Officer Eddy Chrispin said yesterday. The family had filed a complaint with Boston police after the concert.

Attorney Sam’s Take:

I have handled Massachusetts sex crimes cases where much less than this occurred. There have been cases when men pulled over to the side of the road to urinate. I have had “flasher” cases, when men were in a window of their own home and exposed themselves.

Funny thing….the Commonwealth did not wait to prosecute them.

This is a bit of an odd one. If you are wondering what charges could possibly be brought against Officer Openfly, if the allegations are true, Massachusetts law offers Lewd and Lascivious Conduct, Indecent Exposure, Disorderly Conduct and Indecent Assault and Battery to name a few.

Yes, urinating on someone is considered indecent and is a battery.

If there were kids with that family, there would be a host of other crimes. Although, I don’t know if many 10-year-olds go around bopping to heavy metal music.

Here is another interesting thing…Clerk Magistrate’s Hearing to determine whether there is probable cause usually happens in misdemeanor cases. There is no such right with felonies. With felonies, what normally happens is that the police get the complaint and the accused is either arrested or summonsed in. Period.

Here, apparently the complainants have come forward with their complaints. The Boston police department has requested complaints. And yet the prosecutors…?

Perhaps they think this has all been blown out of proportion.

I can see the conversation now…

“Ok, officer, I read your report…what exactly did the guy do that was illegal?”

“Well…first of all….other than the trespass….he exposed himself…”

“Oh…well…maybe his fly was down and he did not realize….”

“Actually, he pulled his pants down and peed on a family sitting in front of him.”

“Well, you know, when you’ve got to go….”

“Then, he kept harassing them with sexual comment. Accosted the women verbally and physically…with his penis out and his pants still down”

“Hmmm. Sounds like he was drunk or something.”

“He was drunk.”

“Oh, that explains it. Voluntary intoxication. Being drunk. It’s an absolute defense! Come back when you have something, huh?”

Welcome to the Bizarro criminal justice system.

I wonder what could be different in this case…?

Have a good, safe and law-abiding weekend!

The full article of this story can be found at http://www.capecodonline.com/apps/pbcs.dll/article?AID=/20090212/NEWS/902120317

Contact Information